SH. RAKESH KUMAR,NEW DELHI vs. ITO, BULANDSHAHR

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ITA 3743/DEL/2016Status: DisposedITAT Delhi29 October 2018AY 2009-104 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the assessment order passed under Section 263 had become infructuous as the revisional jurisdiction under Section 263 could not be sustained. Therefore, the assessment order was quashed.

What were the facts?

The assessee appealed against an order confirming an addition of Rs. 9,52,041/-. The assessee's earlier appeal against a revisional order under Section 263 was allowed by the ITAT, setting aside the revisional order.

What were the issues?

Whether the assessment order passed under Section 263 is sustainable when the ITAT has already set aside the revisional order on the grounds that the assessment was not prejudicial to the interest of revenue.

Which sections of the Income-tax Act were involved?

Section 40(a)(ia),Section 194H,Section 263,Section 143(3)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH “SMC”, NEW DELHI

Before: SHRI H.S. SIDHU

ORDER The Assessee has filed this appeal against the order dated 01.3.2016 passed by the Ld. CIT(A), Ghaziabad relating to assessment year 2009-10 on the following grounds:- i) That on facts and circumstances of the case, the order passed by the ld. CIT(A) is bad both in the eyes of law and on facts. ii) That the ld. CIT(A) has erred in law and on facts in confirming the addition made by the AO of Rs. 9,52,041/- by invoking the provisions of section 40(a)(ia) rws 194H, which is not applicable on facts as well as at law. iii) That the Ld. CIT(A) has erred in law and on facts in confirming the addition of section 40(a)(ia) rws 194H ignoring the nature of business as well as nature of expenses. iv) That the impugned appellate order is arbitrary, illegal, bad in law and in violation of rudimentary principles of contemporary jurisprudence. v) That the appellant crave leave to add/ alter any / all grounds of appeal before at the time of hearing of the appeal.

2.

Facts narrated by the revenue authorities are not disputed by both the parties, hence, the same are not being repeated here for the sake of brevity.

3.

At the time of hearing, Sh. P.C. Yadav, Advocate/Ld. counsel for the assessee stated that Assessee has filed the Appeal before the Tribunal against the order dated 30.3.2014 passed by the Ld. CIT, Ghaziabad u/s. 263 of the I.T. Act, 1961 and the Tribunal has accepted the appeal of the Assessee by setting aside the revisional order passed u/s. 263 by the ld. CIT, Ghaziabad, vide its order dated 13.08.2018 in (AY 2009-10). Hence, he submitted that the assessment order dated 05.01.2015 u/s. 263/143(3) of the I.T. Act, 1961 has become infructuous and may be quashed as such. He has filed the copy of the Tribunal’s ‘F’ Bench order dated 13.8.2018 passed in ITA no. 3386/Del/2014 (AY 2009-10) in assessee’s own case in which the Bench has held that assessment is not prejudicial to the interest of revenue. Since one of the limb of exercising jurisdiction u/s. 263 is missing, therefore, such revisional jurisdictional u/s. 263 cannot be sustained. In view of above, Ld. counsel for the assessee submitted that the appeal of the Assessee may be allowed by quashing the assessment order dated 05.1.2015.

4.

On the other hand, Ld. DR has not produced any contrary evidence.

5.

I have heard both the parties and perused the records, especially the impugned order as well as the ITAT order dated 13.8.2018. I find that Assessee has filed the Appeal before the Tribunal against the order dated 30.3.2014 passed by the Ld. CIT, Ghaziabad u/s. 263 of the I.T. Act, 1961 and the Tribunal has accepted the appeal of the Assessee by setting aside the revisional order passed u/s. 263 by the ld. CIT, Ghaziabad, vide its order dated 13.08.2018 in (AY 2009-10). I further find that the Tribunal’s ‘F’ Bench vide its order dated 13.8.2018 passed in ITA no. 3386/Del/2014 (AY 2009-10) in assessee’s own case has held that assessment is not prejudicial to the interest of revenue. Since one of the limb of exercising jurisdiction u/s. 263 is missing, therefore, such revisional jurisdictional u/s. 263 cannot be sustained. Therefore, in my considered view, the assessment order dated 05.01.2015 u/s. 263/143(3) of the I.T. Act, 1961 has become infructuous and deserve to be quashed. I hold and direct accordingly.

6.

In the result, the appeal of the assessee stands allowed.

Order pronounced on 29/10/2018.

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